Tolling the SOL

Question 1

Infancy of Incapacitation

Answer 1

the time of infancy/incapacitation does not count towards the running of the sol

Question 2

death of a person entitled to bring a person injury action

Answer 2

brought by the rep within the original time period or 1 year after qualification of the personal rep, whichever is longer

Question 3

death of a person against whom a personal action may be brought

Answer 3

before the expiration of the original period of limitations or 1 year after qualification, whichever is longer

Question 4

stayed by injunction

Answer 4

wont count towards the running of the sol

Question 5

obstruction by the defendant

Answer 5

time of obstruction does not count towards the running of the sol

Question 6

obstruction includes: (2)

Answer 6

filing bankruptcy

any other direct or indirect means to obstruct the filing of the action

Question 7

what must the plaintiff show for obstruction

Answer 7

the def undertook an affirmative act directly or indirectly intended to obstruct the plaintiff’s right to file the action; if this was not the def’s intent, the sol is not tolled

Question 8

third party claims for indemnification and contribution

Answer 8

if action is brought against a def within 30 days of the expiration of sol, the def has extra 60 days tacked on to usual sol claims for indemnification and contribution

Question 9

effect of criminal proceedings on civil action sol

Answer 9

if a plaintiff has a civil claim arising out of a defendant’s criminal conduct of another, and a criminal action is commenced before the sol has run, the time any criminal prosecution is pending tolls the sol for the civil claim (inc all appeals)

Question 10

if the party owing money makes a promise to not plead the sol, such promise is enforceable if: (2)

Answer 10

-failure to enforce the promise would constitute fraud on the promise, or
-the promise is in writing

Question 11

If the promise to not plead the sol is in writing then it must be: (3)

Answer 11

-is made to avoid or defer litigation pending settlement of any case
-is not made contemporaneously with any other contract, and
-is made for an additional term not longer than the applicable limitations period

Question 12

Counterclaim and cross-claim

Answer 12

deemed to have been brought the action at the time of filing the pleading

Question 13

counterclaim and cross-claim arising out of the same transaction

Answer 13

sol is tolled when the initial suit was filed

Question 14

how must the sol be raised

Answer 14

raised as an affirmative defense

Question 15

what happens if sol is not pleaded

Answer 15

it is waived

Question 16

who has the burden of proof?

Answer 16

def has to show that the claim is time barred

Question 17

right to a jury

Answer 17

either side has a right to a jury trial, if there is a fact issue affecting the running of the sol